“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Tuesday, July 12, 2011

Is Justice for Sale in the Marion County Prosecutor's Office?; Deal Raises Serious Questions of Legality and Ethics Violations

Fox 59 reported today that Marion County Prosecutor Terry Curry will announce tomorrow that he is dropping felony indictments in the OmniSource in exchanged for $300,000 (originally erroneously reported as $1 million) paid to the Marion County Prosecutor's Office. When I looked for the Fox59 story by Russ McQuaid it had been pulled. (It is apparently being updated.) Before it was pulled Gary Welsh of Advance Indiana wrote about the deal, including quoting from the Fox59 story:

If you're a multi-million dollar company represented by a politically-connected law firm, you can buy your way out of any serious criminal charge in Marion County. That's the message Marion Co. Prosecutor Terry Curry is sending out tonight in a deal he has reached with OmniSource, a company that employed more than 50 off-duty police officers and was indicted by a grand jury for conspiring to buy millions of dollars worth of stolen scrap metal. Under a deal struck with the giant scrap metal dealer, the company will pay $1 million into an education fund and, unbelievably, will be allowed to once again employ your public safety officers at its scrap yards doing security work. Fox 59 News' Russ McQuaid has the details about this deal that stinks to high heaven:

The case against a chain of OmniSource scrap yards has been resolved with no criminal charges. A seven-figure settlement hasalso been reached.

OmniSource buys scrap metal at six locations around Indianapolis.

In 2009, then Marion County Prosecutor Carl Brizzi claimed OmniSource knew it was buying stolen goods and that off duty police officers helped.

When he was prosecutor, Brizzi claimed OmniSource was knowingly involved in a criminal enterprise and guilty of buying millions of dollars of stolen metal throughout Indiana every year. A Marion County grand jury agreed, indicting the company on three counts of corrupt business influence and five counts of attempted receipt of stolen property.

A total of 51 metro police officers who worked part-time at OmniSource had their work permits pulled and were looking at possible criminal charges.

Now, a source indicates the cops will be cleared and OmniSource will establish a $1 million fund for education and a study and will be able to rehire and retrain the officers.

OmniSource claimed its prosecution was all about generating headlines and fueled by a possible money grab by Brizzi and his office. The Prosecutor’s Office would have received millions of dollars in forfeiture funds if the scrap metal dealer was shut down.

The audacity of this corrupt deal is beyond anything Carl Brizzi was accused of doing during his eight years as Marion Co. Prosecutor. Let's remind folks of what went on here. The largest scrap metal dealer in the state goes out and hires more than 50 off-duty police officers to provide security work for its scrap yards. A commanding district officer provides preferential treatment to the scheduling of police officers who work for OmniSource, in effect putting the scrap metal dealers' time and use of our police officers ahead of their policing work for the public they are sworn to serve. Just by coincidence, one of the off-duty police officers working for OmniSource was heading up undercover investigations targeting competitors of OmniSource. Several of those small-time scrap metal dealers were busted, prosecuted and jailed for knowingly purchasing stolen metal products and put out of business. At the same time, a task force of federal, state and local law enforcement officers uncovers large volumes of stolen scrap metal purchased at OmniSource's scrap yards while there were off-duty police officers working at their facilities.

After a lengthy grand jury investigation, the company is indicted on multiple charges related to the purchase of millions of dollars worth of stolen scrap metal. The company's lawyer, Larry Mackey of Barnes & Thornburg, who once served as campaign chairman for former Marion Co. Prosecutor Carl Brizzi, whose office brought the charges, attacked Brizzi for bringing the charges. OmniSource then filed a lawsuit against Brizzi seeking the return of assets of $277,000 seized during raids conducted on the company's scrap yards. OmniSource's lawyer accused Brizzi of bringing the charges against the company to grab headlines and as a money grab.

During the course of the investigation, Mackey tried to use his clout to get the lead investigator on the case fired, if not demoted for revealing facts of the case to the media. In particular, Mackey was pissed off at a report that appeared in Platts Steel Market Daily. IMPD Maj. Chris Boomershine told industry newspaper Platts Steel Markets Daily in February 2009 that OmniSource kept documents on how to avoid antitrust violations, hired off-duty IMPD officers to target competitors and bought cars altered to appear stolen from undercover police officers....

﻿If this deal is true, it raises serious questions. First, Curry's office has absolutely no legal basis to keep any money, much less $300,000. If pursued through the civil forfeiture, the law only allows him to keep the actual law enforcement costs relating to the Omni Source investigation and prosecution. The prosecutor's office or private attorney Greg Garrison, blew a deadline for the forfeiture action. There is no alternative legal theory that allows the prosecutor's office to retain money from a defendant that is not subject to civil forfeiture. I would add, while there is a statutory diversion program for low-level misdemeanors, there is none for felonies.

Next there is the issue of whether the deal would mean Prosecutor Curry violated the Rules of Professional Conduct. Last month, the Indiana Supreme Court dealt with Delaware County Prosecutor Mark McKinney who was handling civil forfeiture cases at the same time the defendants in those case were facing criminal prosecution from his office. Here is what the Supreme Court said about McKinney who at the time was serving as deputy prosecutor:

As a deputy prosecutor, respondent served a public trust to enforce the law and the state was entitled to his undivided loyalty. Respondent's conduct breeds mistrust and lack of confidence in the judicial system. He used his position as a deputy prosecutor to obtain a significant financial windfall for himself. By serving both as prosecutor and as intermediary for those seeking a favorable plea agreement, respondent gave the impression that justice could be bought. As a public officer charged with the administration of justice, respondent's behavior had the capacity to bolster or damage the public's perception of the criminal justice system. Unfortunately, respondent chose to follow a path that damaged the perception of the administration of justice. By conducting a business that impacted upon his resolution of traffic violations, respondent violated the public's trust. This is serious misconduct, which cannot be ignored.

While unlike McKinney, Prosecutor Curry apparently isn't personally profiting from the payment, the case in another respect is actually much worse than the McKinney disciplinary action. McKinney's conduct only "gave the impression that justice could be bought" though the justices made clear that there never a direct offer by McKinney to forego prosecution in exchange for civil forfeiture proceeds. Prosecutor Curry goes much further than McKinney, openly agreeing to dismiss felony prosecutions against the Omnisource defendants for $300,000.

Then you have the issue of whether Prosecutor Curry and Omnisource defendants might be committing a crime by entering into the deal by which the prosecutor's office gets $300,000 to forgo a criminal prosecution. I point to Indiana's bribery law, IC 35-44-1-1(a)

A person who:

(1) confers, offers, or agrees to confer on a public servant, either before or after the public servant becomes appointed, elected, or qualified, any property except property the public servant is authorized by law to accept, with intent to control the performance of an act related to the employment or function of the public servant or because of any official act performed or to be performed by the public servant, former public servant, or person selected to be a public servant;

(2) being a public servant, solicits, accepts, or agrees to accept, either before or after the person becomes appointed, elected, or qualified, any property, except property the person is authorized by law to accept, with intent to control the performance of an act related to the person's employment or function as a public servant;

(3) confers, offers, or agrees to confer on a person any property, except property the person is authorized by law to accept, with intent to cause that person to control the performance of an act related to the employment or function of a public servant;

(4) solicits, accepts, or agrees to accept any property, except property the person is authorized by law to accept, with intent to control the performance of an act related to the employment or function of a public servant;

(5) confers, offers, or agrees to confer any property on a person participating or officiating in, or connected with, an athletic contest, sporting event, or exhibition, with intent that the person

It doesn't matter that Curry doesn't personally benefit from the deal for it to fall within the scope of IC 35-44-1-1(a). The fact is there is nothing in the law that authorizes Prosecutor Curry to accept $300,000 to forego a felony criminal prosecution.

I agree with Welsh that this extra-legal deal looks far worse than what former Proseucutor Carl Brizzi was accused of doing.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.